The petitioner – State is before this Court calling in

question the order passed in Crl.A.No.5023/2018 dated

05.01.2019 whereby the learned Sessions Judge has allowed the

appeal and set aside the order passed by the Authorized Officer

and has directed return of jeep that had been confiscated by the

State.

2.

Heard

Sri

Shankar.H.S.,

learned

High

Court

Government Pleader appearing for the petitioner.

3. Brief facts leading to the filing of the petition, as borne

out from the pleadings, are as follows:

On 08.03.2010 the complainant and his staff intercepted a

jeep belonging to the respondent on a suspicion that the jeep

was carrying liquor. When the jeep was checked they did find

about 9 card boxes containing liquor. On enquiry, the driver of

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the jeep admitted that there was no licence or bill for

transporting the same and had purchased the liquor from Sahaj

Wine Stores, Ishwaramangala and was transporting it to State of

Kerala. Based upon the said incident, a complaint came to be

registered for offences punishable under Sections 13(1)(a), 34

and 43(A) of the Karnataka Excise Act, 1965 since the accused

was transporting liquor without any documents at his hands.

4. On the basis of the said complaint, an FIR came to be

registered against the respondent for the aforesaid offences and

confiscation proceedings were initiated by the Appropriate

Authority. The Authority by its order dated 11.10.2017

confiscated the jeep invoking power under Section 43(a)2 of the

Karnataka Excise Act, 1965. The respondent being aggrieved by

the

said

order

of

the

Authority

filed

an

appeal

in

Crl.A.No.5023/2018 before the learned Sessions Judge, Puttur.

The learned Sessions Judge, after hearing the parties, allowed

the appeal and set aside the order of the Authority and directed

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release/return of the vehicle. It is this order that is called in

question by the petitioner-State.

5.

The

learned

High

Court

Government

Pleader

representing the State would contend that merely because the

mahazar witnesses have turned hostile, the seizure mahazar

cannot be disbelieved. The Appellate Court has lost sight of the

other witnesses who have supported the mahazar. He would

further contend that the confiscation proceeding is an

independent proceeding and even if the accused gets acquitted

in the offence, the confiscation proceeding would still remain

and appropriate orders could be passed.

6. I have given my anxious consideration to the submission

made by the learned High Court Government Pleader and have

perused the order passed by the learned Sessions Judge.

7. It is not in dispute that Ex.P1 Mahazar was not even

proved by the evidence of P.W.3 and P.W.4 who were

independent mahazar witnesses. The evidence further indicates

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that the mahazar was attested by P.W.3 and P.W.4 at a fish

market. The chemical analysis of the seized liquor was not

produced before the Authority who had directed confiscation of

the vehicle. The order passed by the learned Sessions Judge,

insofar as it is germane, is extracted for the purpose of ready

reference:

“25. I have perused the order sheet of

the Lower Authority. Subsequent to 5-07-2012 the

case was adjourned on several dates. He was present

in the said authority on 22-11-2012, 4-07-2013 and

17-09-2013. It appears that the said case was

adjourned on several hearing dates for so many

reasons. It cannot be said that he was not all appeared

before the said authority for further cross-examination,

because he was present on some hearing dates

subsequent to 5-07-2012 and the case was adjourned

for some reasons mentioned in the charge sheet.

It cannot be said that the prosecution has proved

the case only on the ground that this witness was

not appeared for further cross-examination. The

prosecution has to prove the case on its own strength,

not on the weakness of the accused/defence. The

prosecution has to prove the case beyond all reasonable

doubt. The defence/accuse